Citation Nr: 0600193
Decision Date: 01/05/06 Archive Date: 01/19/06
DOCKET NO. 04-28 297A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 (West
2002) for residuals of esophagogastroduodenoscopy (EGD)
performed in June 2003, to include weakness and dizziness.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The veteran had active service from November 1945 to May
1947.
FINDING OF FACT
The preponderance of the credible and probative evidence of
record shows that there is no disorder that was the result of
carelessness, negligence, lack of skill, or involved errors
in judgment or similar instances of fault on the part of the
Department of Veterans Affairs (VA).
CONCLUSION OF LAW
Entitlement to compensation under the provisions of
38 U.S.C.A. § 1151 (West 2002) for residuals of EGD performed
in June 2003, to include weakness and dizziness, is not
warranted. 38 U.S.C.A. § 1151 (West 2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Background
At the outset, the Board of Veterans' Appeals (Board) notes
that this matter has been developed pursuant to the
guidelines established in the Veterans Claims Assistance Act
of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)
(VCAA). As the Board's decision to deny the claim rests in
part on its finding that substantial compliance with the VCAA
has been met in this case, the Board will more particularly
address the VCAA in the Analysis section of this decision.
A review of the testimony and statements of the veteran
reflects that he essentially maintains that he has sustained
residual disability manifested by dizziness and weakness
because of VA negligence associated with the administration
of an EGD in June 2003. More specifically, the veteran
contends that the EGD caused the severance of a blood vessel
and massive bleeding, and that he suffers from residual
disability as a result of this error in the procedure.
A VA treatment record from June 10, 2003, reflects that the
veteran underwent an EGD, after which there was an impression
of probable Schatzki ring at the gastroesophageal junction,
non-erosive gastritis, with multiple biopsies taken from body
and antrum, previous possible pyloroplasty, and deformed
duodenal bulb.
VA treatment records from June 11, 2003, note that the
veteran complained of a black stool and bleeding from the
stomach. The assessment was melena, status post EGD, and it
was indicated that another EGD would be conducted to take
care of the bleeding.
A VA outpatient record from June 14, 2003, reflects that the
veteran came to the emergency room at this time with
complaints of bloody diarrhea since the previous evening. It
was noted that a repeat EGD revealed active bleeding near
mucosal irregularity which had been biopsied the preceding
day.
A VA outpatient record from June 26, 2003, reflects that the
veteran complained of a prior episode of upper
gastrointestinal (UGI) bleeding. It was noted that the
veteran originally had an EGD on June 10, 2003 for possible
UGI bleed which demonstrated nonbleeding inflammatory changes
in the stomach (nonerosive gastritis), and a biopsy was
taken. The veteran then presented the following day with
melena and was hospitalized. A repeat EGD showed pronounced
bleeding in the stomach at the presumed biopsy site which
revealed only "mucosal congestion." An epinephrine/bicap
heater probe was then reportedly applied with cessation of
bleeding. The veteran was discharged in stable condition and
presented at this time for further evaluation. The veteran
complained of some residual weakness, but denied
melena/hematochezia or lightheadedness/dizziness. The
impression was UGI bleed following biopsy on nonerosive
gastritis: status post epinephrine/bicap heater probe:
currently stable without clinical evidence of rebleed.
VA examination in June 2004 revealed that the veteran
underwent an EGD on June 10, 2003, and that as a result of a
biopsy, the veteran had UGI bleeding and was seen in urgent
care the following day. He was then hospitalized and
discharged on June 14, 2003. Intermittently, his gait would
become wobbly and he would fall down. He denied any
dizziness. Physical examination revealed a normal gait and
blood pressure of 120/80. The assessment was UGI bleeding in
June 2003 - resolved, no recurrence, no signs of anemia, and
normal hemoglobin. The examiner opined that the veteran did
not have any residual secondary to the UGI bleeding in June
10, 2003. The examiner further commented that the veteran
denied any history of dizziness and that his main problem was
an unstable gait which was not a complication of the upper
endoscopy performed on June 10, 2003.
At the veteran's personal hearing in December 2004, the
veteran testified that due to significant internal bleeding
associated with his initial EGD in June 2003, his gait
problems had increased (transcript (T.) at p. 2).
II. Analysis
Consideration of the Claim on the Merits
Effective October 1, 1997, 38 U.S.C.A. 1151 was amended by
Congress. See Section 422(a) of PL 104-204. The purpose of
the amendment is, in effect, to overrule the Supreme Court's
decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which
held that no showing of negligence is necessary for recovery
under section 1151. In pertinent part, 1151 is amended as
follows:
"(a) Compensation under this chapter and dependency and
indemnity compensation under chapter 13 of this title shall
be awarded for a qualifying additional disability or a
qualifying death of a veteran in the same manner as if such
additional disability or death were service connected. For
purposes of this section, a disability or death is a
qualifying additional disability or qualifying death if the
disability or death was not the result of the veteran's
willful misconduct and-
"(1) the disability or death was caused by hospital care,
medical or surgical treatment, or examination furnished the
veteran under any law administered by the Secretary, either
by a Department employee or in a Department facility as
defined in section 1701(3)(A) of this title, and the
proximate cause of the disability or death was-
(A) carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the
Department in furnishing the hospital care, medical or
surgical treatment, or examination; or
(B) an event not reasonably foreseeable."
Here, the appellant's claim under 38 U.S.C.A. § 1151 was
received in June 2003 and, accordingly, the claim will be
adjudicated by the Board under the version of 38 U.S.C.A. §
1151 that requires VA fault.
As the Board has indicated above, the critical inquiry under
post-Gardner interpretation of the 38 U.S.C.A. § 1151 is
whether additional disability resulted from VA medical
treatment. (Neither the veteran nor his representative have
asserted that the veteran sustained additional disability as
the result of an event that was not reasonably foreseeable.)
In the process of making such inquiry, the Board will address
the evidence in favor and against the veteran's claim.
A threshold element of a claim for compensation under
38 U.S.C.A. § 1151 both before and after October 1, 1997,
includes the existence of a current disability, and as to the
veteran's claim for 38 U.S.C.A. § 1151 benefits based on
residuals of the June 10, 2003 EGD, the Board finds that
there is insufficient medical evidence of current residual
disability related to that procedure associated with
dizziness, weakness, or other symptoms. In addition, various
communications from the regional office (RO) clearly placed
the veteran and his representative on notice of the need for
the veteran to produce evidence of identifiable additional
disability that was the result of actions taken by the VA,
and the record does not contain such evidence. In fact, the
June 2004 VA examiner clearly opined that the veteran did not
have any residual secondary to the UGI bleeding in June 10,
2003, and that his unstable gait was not a complication of
the upper endoscopy performed on June 10, 2003.
In support of the veteran's claim the Board readily
acknowledges and has examined the veteran's own statements
and argument to the effect that the June 10, 2003 EGD
resulted in excessive blood loss that in turn caused
disability associated with dizziness and weakness, but there
is no evidence of any relevant current diagnosis or finding
that is the result of that procedure or any other treatment
administered by VA. It is long-established that the veteran,
as a layperson, is not qualified to render medical opinions
regarding the etiology of disorders and disabilities, and his
opinion is entitled to no weight. Cromley v. Brown, 7 Vet.
App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492,
495 (1992). Furthermore, it has not been demonstrated that
the veteran possesses the requisite knowledge, skill,
training, or education to qualify as a medical expert in
order for such statements to be considered competent
evidence. Id. In short, the veteran's own speculations as
to medical matters are without any probative value.
As for the contemporaneous treatment records themselves, they
are not reflective of a diagnosis of disability manifested by
dizziness or weakness associated with the treatment the
veteran received in June 2003, and the June 2004 VA examiner
did not identify any such disability. There is also no
medical opinion in the record that disputes the opinions of
the June 2004 VA examiner.
After having reviewed the record in this case, and for the
reasons and bases expressed above, the Board concludes that
the preponderance of the evidence is against a finding that
additional residual disability has been sustained by the
veteran as a result of the treatment administered to the
veteran by the VA. Accordingly, the claim of entitlement to
VA benefits pursuant to 38 U.S.C.A. § 1151 is denied.
VCAA
Having determined that the evidence is against the claim, the
Board has additionally considered whether there has been
proper notification and development in this matter pursuant
to the VCAA. In this regard, the record reflects that
appellant has been notified on numerous occasions of the need
to provide medical evidence of current additional relevant
disability.
First, following the filing of the veteran's claim in June
2003 and prior to the initial rating action of March 2004,
correspondence from the RO in July 2003 advised the veteran
of the evidence necessary to substantiate his claim for
compensation under 38 U.S.C.A. § 1151, and of the respective
obligations of the VA and the veteran in obtaining that
evidence. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
While the attachment entitled "What the Evidence Must
Show," is identified in the letter but not associated with
the claims folder, the Board is entitled to presume that it
was provided to the veteran. There is a presumption of
regularity that has been held to attend the administrative
functions of the Government and the Board finds that it would
be presumed that the RO provided the veteran with the
identified attachment, unless rebutted by clear and
convincing evidence to the contrary. See Baldwin v. West, 13
Vet. App. 1, 6 (1999); Mindenhall v. Brown, 7 Vet. App. 271
(1994).
In addition, the initial rating action of March 2004 denied
the claim on the basis that no additional residual disability
had been demonstrated, and following efforts to obtain all
relevant treatment records and examinations and opinions
regarding a possible relationship between a current disorder
and VA treatment received by the veteran in June 2003, the
August 2004 statement of the case and January 2005
supplemental statement of the case clearly advised the
veteran that while he had claimed residual impairment,
disabling residuals were not shown by current medical
evidence.
Although the July 2003 VCAA notice letter did not
specifically request that the appellant provide any evidence
in the appellant's possession that pertained to the claim as
addressed in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
as demonstrated from the foregoing communications from the
RO, the Board finds that appellant was otherwise fully
notified of the need to give to VA any evidence pertaining to
his claim. All the VA requires is that the duty to notify
under the VCAA is satisfied, and the claimants are given the
opportunity to submit information and evidence in support of
their claims. Once this has been accomplished, all due
process concerns have been satisfied. See Bernard v. Brown,
4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553
(1996); see also 38 C.F.R. § 20.1102 (harmless error).
The Board further notes that while the evidence in the claims
file reflects that the veteran was only provided with the
regulations that did not require a showing of fault on the
part of VA (the August 2004 statement of the case only
provided the regulations in effect prior to October 1997, and
the Board does not know the law that was provided with the
July 2003 VCAA letter), even assuming that only the old
regulations were provided, this would not be sufficiently
prejudicial under the facts of this case to require a remand
for another VCAA letter. More specifically, under both the
old and new law, the veteran is required to show that he has
additional current disability that resulted from his VA
treatment, and since the evidence is against such a showing,
remand so that the veteran can be advised that he now has to
also prove fault on the part of VA will serve no useful
purpose to the veteran. If, on the other hand, the claim had
been denied on a basis that was no longer good law, clearly
remand would be appropriate. Here, the veteran's claim was
subject to denial based on a requirement under either the old
and new law, and thus, the Board finds that the failure to
provide the new law cannot be considered prejudicial to the
veteran.
In addition, neither the veteran nor his representative has
indicated any intention to provide any medical opinion to
contradict any of the opinions or findings obtained in June
2004.
The Board also observes that because the June 2004 examiner
did not find a current residual disability associated with
the veteran's EGD in June 2003, it was unnecessary for the
examiner to further comment as to whether such disability was
related to negligent VA treatment. Thus, the Board finds
that remand for an additional opinion on etiology is not
necessary.
Consequently, based on all of the foregoing, the Board finds
that no further notice and/or development is required in this
matter under the VCAA.
ORDER
The veteran's claim for compensation pursuant to the
provisions of 38 U.S.C.A. § 1151 for residuals of EGD
performed in June 2003, to include weakness and dizziness, is
denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs